BARRY LANE and THE OWNERS OF 33 FREDRICK STREET, SHOALWATER - STRATA PLAN NO 475
[2005] WASAT 149
•15 JULY 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION: BARRY LANE and THE OWNERS OF 33 FREDRICK STREET, SHOALWATER - STRATA PLAN NO 475 [2005] WASAT 149
MEMBER: MR M SPILLANE (MEMBER)
HEARD: DETERMINED ON PAPERS
DELIVERED : 15 JULY 2005
FILE NO/S: ST 50 of 2004
BETWEEN: BARRY LANE
Applicant
AND
THE OWNERS OF 33 FREDRICK STREET, SHOALWATER - STRATA PLAN NO 475
Respondent
Catchwords:
Real property - Strata title - Common property - Keep in good and serviceable repair - Properly maintain
Legislation:
State Administrative Tribunal Act 2004 (WA), s 11, s 60(2) and s 167
Strata Titles Act 1966 (WA)
Strata Titles Act 1985 (WA), s 35, s 35(1), s 35(1)(b), s 36(2), s 83 and s 83(1)
Result:
Application successful in part
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Self-represented
Solicitors:
Applicant: Self-represented
Respondent: Self-represented
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Issues
The issue for determination is whether the strata company, through the Council of Owners ("Council"), should be ordered to carry out maintenance and bring the common property into good and serviceable repair.
Applicant
The applicant is the proprietor of Lot 10 on Strata Plan 475 ("the Strata Plan").
Parcel
The parcel known as "33 Fredrick Street, Shoalwater" is described as being Lot 18, Cockburn Sound, location 16 on diagram 38067 and is situated at 33 Fredrick Street, Safety Bay.
The Parcel comprises of a twostorey brick structure, incorporating 10 residential lots. There are five lots on each level.
Jurisdiction
The application was originally made to the Strata Title Referee ("the Referee"). On 1 January 2005, the State Administrate Tribunal ("the Tribunal") commenced pursuant to s 7 of the State Administrative Tribunal Act (WA) ("the Act"). By virtue of s 167 of the Act, this matter was transferred to the Tribunal. I have been nominated to constitute the Tribunal pursuant to s 11 of the Act.
In accordance with reg 28 of the State Administrative Tribunal Regulations (WA), the matter is taken to have commenced in the Tribunal.
In accordance with s 60(2) of the Act, and consistent with the Referee's approach to the matter prior to its transfer, I have considered and determined the application on the basis of the documents received.
Strata plan and relevant Act
The Strata Plan was registered on 3 August 1971 pursuant to the Strata Titles Act 1966 (WA) ("the 1966 Act").
In 1985, the 1966 Act was repealed and replaced by the Strata Titles Act 1985 (WA) ("STA"), which continues to be the relevant Act.
In these reasons, unless otherwise specified, all references to sections and schedules are, respectively, references to sections of and schedules to the STA.
Application
In his application dated 27 April 2004, the applicant sought orders under s 83 in the following terms:
"The Strata Company through the Council of Owners (council) perform its duties and organise for the following maintenance to be carried out to bring the common property into good and serviceable repair. The maintenance is as follows:
Painting of the Common Property: Paintwork is flaking from the woodwork and the guttering (especially at the rear of the complex).
Guttering and down pipes to be painted.
Facia [sic] and eaves are in poor condition as paintwork is flaking (especially at the rear of the complex) and woodwork is exposed.
•Front doors, window lintels and meter box.
•Concrete landing and steps.
•Steel balustrade and balcony woodwork.
•Carports: wooden beams and steel uprights.
The council is to ensure that three quotes are to be sought and an extraordinary meeting is to b3e [sic] called of all owners to select a suitable quote for the above painting. The quotes are to be obtained and extraordinary meeting is to be called within sixty days. The painting is to be completed as soon as practical or no latter [sic] than March 2005.
The cross over [sic] between the road and complex driveway is to be replaced, as it is in poor condition. Rockingham City Council has provided a quote of $498.96 to replace the crossover. The council is to except [sic] the quote and the crossover is to be replaced in no later than sixty days.
The council is to seek quotes within sixty days and approve for the replacement of the roof and guttering of the carports, to bring the roof and guttering into good repair. This is to be completed as soon as practical [sic] or no latter [sic] than March 2005.
The council is to seek quotes and approve the repair of the rear fence, to bring it into good repair. This is to be completed as soon as practical [sic] or no latter [sic] than May 2005.
The council is to seek quotes to bring the rear garden into good condition. Owners are given the opportunity to suggest ideas at the extra-ordinary [sic] meeting and the council is to organise for the work to be carried out as soon as practical [sic] or no later than May 2005.
All costs for the maintenance outlined are to be incurred by the Strata Company, and at the extra-ordinary [sic] meeting a special levy will be required to cover the costs of the maintenance to be carried out.
The council is to enforce the by‑law (schedule 2 ‑ 14) to remove the old sheet that covers the rear window of unit 8. This is to be done within 30 days and cost of replacement to be covered by the owner."
By letter of 11 May 2004, the Registrar of the Strata Titles Referee's office wrote to the owners of 33 Fredrick Street, Shoalwater Strata Plan 45 and invited submissions in respect of the application lodged.
Responses received
Responses were received from either the owners or the representatives of the owners of all 10 units. The owners of nine of the units responded directly, and the owner of the tenth unit being deceased, a response was received from their representatives.
In broad terms, five of the responses were generally supportive of the application and five opposed. Of the five opposed, only three submissions were, in fact, received, as one of the owners in opposition owns three units.
A response was also received from the strata manager who opposed the application, which I will address later.
Submissions in support
In general, the owners who supported the application confirmed that maintenance was required to be done, and in particular supported:
•replacement and repair of roof tiles where needed;
•replacement of damaged and rusted guttering and downpipes;
•painting of guttering and downpipes;
•painting of common areas;
•repair of driveway crossovers;
•repairs to the roof and guttering of the carports.
Submissions in opposition
Of the owners opposed to the application, one stated that they had not personally inspected the premises but were relying on what they described as "credible advice" that the building was in good repair and condition and that the guttering repair was the only work required.
A second owner opposed on the grounds that there were insufficient funds in the strata accounts for the repairs required, and the only "immediate" repair they could see was necessary after an inspection, was to the roof tiles.
The third submission opposing the application conceded that "the units could be in better shape" but went on explain that what was being requested was excessive.
The strata manager in his submission explained that, in January 2004, the owners faced replacing the sewerage system at a cost of $3000.00, and because of that expenditure, other planned maintenance had been rescheduled. He also pointed out, and I accept, as it was an issue raised in more than one submission, that the financial position of several of the owners is not strong, and although most owners conceded that maintenance needed to be carried out, there was clearly a difference of opinion as to the priority various matters should take.
It was common cause that replacing the sewerage system in early 2004 had a significant impact on the strata accounts, and various owners' ability to fund substantial maintenance was raised more than once in submissions.
Statutory provisions
Section 35(1) of the STA provides:
"(1) A strata company shall
(a) enforce the by-laws;
(b)control and manage the common property for the benefit of all the proprietors;
(c)keep in good and serviceable repair, properly maintain and, where necessary, renew and replace
(i)the common property, including the fittings, fixtures and lifts used in connection with the common property; and
(ii)any personal property vested in the strata company,
and to do so whether damage or deterioration arises from fair wear and tear, inherent defect or any other cause; … "
Section 83(1) of the STA includes:
"(1)The State Administrative Tribunal may, pursuant to an application of a strata company, an administrator, a proprietor, a person having an estate or interest in a lot or an occupier or other resident of a lot, in respect of a scheme, make an order for the settlement of a dispute, or the rectification of a complaint, with respect to the exercise or performance of, or the failure to exercise or perform, a power, authority, duty or function conferred or imposed by this Act or the by-laws in connection with that scheme … ".
The parties against whom such an order may be made include the strata company.
Consideration
The strata company has the power, and indeed the obligation, to carry out repairs, maintenance, and where necessary, replacement of items of common property (s 35(1)). Furthermore, the strata company has an obligation to control and manage the common property for the benefit of all the proprietors (s 35(1)(b)).
It is clear from the submissions in the present case, even those opposing the application, that work needs to be carried out in order to bring the property up to a standard of good and serviceable repair as required by the STA. It is the strata company's obligation to see that this is done.
It is noted that the present strata manager only began acting in that capacity in January 2004, and the maintenance work that needs to be carried out was clearly allowed to accumulate over a number of years prior to his arrival.
It was also unfortunate that, in or about the time of his arrival, the sewerage system failed and needed replacement at a cost of approximately $3000.00, which substantially depleted the strata company's accounts and, as that matter was urgent with serious health implications, it had to be attended to as a priority, ahead of any other maintenance issues.
However, emergencies such as that arise, and it is for this reason that levies must sometimes be imposed or, pursuant to s 36(2) of the STA, a strata company may establish a reserve fund for the purpose of accumulating funds to meet such contingent expenses.
Unfortunately, in the present case, it would appear that no such fund was in existence, and therefore, the unexpected cost of the sewerage system impacted heavily on the normal strata accounts.
The provisions of s 35 of the STA are mandatory, in that Parliament used the word "shall", and there is a clear onus on the strata company to manage its affairs in a way that allows it to comply with the requirements of s 35.
Findings
Insufficient detail was furnished in respect of the old sheet in the window of unit 8 and the condition of the rear garden, and I do not intend to make any orders in respect of these items. However, I am satisfied that items such as roof tiles, guttering, downpipes and crossovers need attention as does the paintwork in the common areas.
I am conscious of the fact that specific orders setting out a detailed timetable as to what must be done and by when may impose a burden on some owners, and it is clear that, in some cases, what may need or not need to be done will be subjective. Furthermore, some works may have been carried out since the application was first lodged.
However, the strata company is under an obligation to control and manage the common property for the benefit of all the proprietors, keep it in good and serviceable repair, properly maintained and, where necessary, renew and replace the common property including the fittings and fixtures.
I am satisfied, therefore, that positive orders need to be made and that the strata company, through the Council, arrange for the following orders to be carried out to bring the common property into good and serviceable repair.
Orders
1.Within 30 days from the date of this Order, arrange for an inspection and report from a properly qualified person as to what is required to bring into good and serviceable repair items 2a, 2b and 2c referred to in Order 2 below.
2.Within 60 days from the date of this Order, obtain quotes from at least two properly qualified tradespersons in respect of the following work:
(a)All necessary repairs of all roofs, guttering and downpipes on the common property, including the carports, identified by the inspection referred to at Order 1 above.
(b)All necessary repairs and/or replacement of crossovers identified by the inspection referred to at Order 1 above.
(c)All necessary repairs to the rear fence identified by the inspection referred to at Order 1 above.
(d)The painting of the common property, in particular:
•fascias and eaves
•concrete landings and steps
•steel balustrade and balcony woodwork
•wooden beams and steel in carport
•front doors, window lintels and meter boxes.
3.Within 90 days of the date of this Order, call and hold an extraordinary meeting of the owners at which meeting all reports and quotes received will be tabled.
4.At the extraordinary meeting referred to at Order 3 above, the strata company is to ensure that the owners agree a timetable not exceeding 24 months in total from the date of the extraordinary meeting by which all work identified in Order 1 above and quoted for as per Orders 2(a), 2(b) and 2(c) above, together with the painting of the common property set out at Order 2(d) above, will be completed.
5.At the extraordinary meeting referred to at Order 3 above, the strata company will also ensure that the owners agree the priority in which the work to be carried out will be done and that a sufficient levy and a timeframe for payment of that levy is agreed which will allow the necessary work to be completed within the 24month period.
I certify that this and the preceding [35] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR M SPILLANE, MEMBER
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